Dortch v. State

Appeal
from the Circuit Court of the City of St. Louis Hon. Mark H.
Neill

ROBERT
G. DOWD, JR, PRESIDING JUDGE.

Dannie
Dortch ("Movant") appeals from the judgment denying
his Rule 24.035 motion without an evidentiary hearing. We
affirm.

Movant
was charged under Section 571.070.1(1) for unlawful
possession of a firearm by a felon and under Section
571.030.1(1) for unlawful use of a weapon by carrying it in a
concealed manner. These crimes occurred in 2013. Movant pled
guilty and was sentenced as a prior and persistent offender
to fifteen-year and seven-year terms of imprisonment, to be
served concurrently. Movant did not appeal, but filed a
motion for post-conviction relief under Rule 24.035. He was
appointed counsel, and a timely amended motion was
filed.[1] Therein, Movant alleged that plea counsel
was ineffective for failing to advise him that the statutes
under which he was charged were unconstitutional and that,
but for that conduct of counsel, he would not have pled
guilty and would have proceeded to trial. Movant also alleged
that counsel was ineffective for failing to file motions to
dismiss the charges on the grounds that the statutes were
unconstitutional. He asserted that these statutes were
unconstitutional restrictions on his right to bear arms as
provided in Article I, Section 23 of the Missouri
Constitution, which had been amended by voter-approval
shortly before Movant pled guilty in 2014:

That the right of every citizen to keep and bear arms,
ammunition, and accessories typical to the normal function of
such arms, in defense of his home, person, family and
property, or when lawfully summoned in aid of the civil
power, shall not be questioned. The rights guaranteed by this
section shall be unalienable. Any restriction on these rights
shall be subject to strict scrutiny and the state of Missouri
shall be obligated to uphold these rights and shall under no
circumstances decline to protect against their infringement.
Nothing in this section shall be construed to prevent the
general assembly from enacting general laws which limit the
rights of convicted violent felons or those adjudicated by a
court to be a danger to self or others as result of a mental
disorder or mental infirmity.

The
amendment became effective in September of 2014. Prior to
that amendment, Article I, Section 23 of the Missouri
Constitution provided:

That the right of every citizen to keep and bear arms, in
defense of his home, person, and property, or when lawfully
summoned in aid of the civil power, shall not be questioned;
but this shall not justify the wearing of concealed weapons.

While
Movant's post-conviction motion was pending, the Supreme
Court held that the amendment does not apply retroactively to
crimes that occurred before its effective date. See State
v. Merritt, 467 S.W.3d 808, 812 (Mo. banc 2015); see
also State v. McCoy, 468 S.W.3d 892 (Mo. banc 2015)
(holding same). Our Supreme Court also pointed out that the
amendment did not actually change the level of scrutiny to be
applied to restrictions on the right to bear arms; rather,
since at least 2010, United States Supreme Court precedent
has required that level of scrutiny be applied to this type
of legislation regardless of the language in the above
provision. Merritt, 467 S.W.3d. at 812-13 (citing
McDonald v. City of Chicago, 561 U.S. 742, 750, 791 (2010)).
The Court in Merritt concluded that Section
570.070.1(1) survived strict scrutiny: "[t]he
felon-in-possession law, which bans felons from possessing
firearms, with no exceptions other than possessing an antique
firearm, is sufficiently narrowly tailored to achieve the
compelling interest of protecting the public from
firearm-related crime." Id. at
816.[2]
The motion court here concluded that under the above cases,
there was no legal basis for Movant's requested relief
and it denied the amended motion without an evidentiary
hearing. This appeal follows.

On
appeal, Movant admits that the pre-amendment version of
Article I, Section 23 is the one applicable to his 2013
crimes. He argues that the felon in possession statute and
the concealed carry law were subject to strict scrutiny even
before the amendment, but they do not survive that analysis
because they are not narrowly drawn to express a compelling
state interest. To be clear, Movant has not directly
attacked the constitutionality of either statute by arguing
that the alleged unconstitutionality, in and of itself,
warrants vacating his convictions and sentences. Rather, the
unconstitutionality of the statutes is only asserted in
support of his claim that plea counsel was ineffective for
failing to advise him of the constitutional challenge and
failing to file a motion to dismiss based thereon.

To
prevail on these claims of ineffectiveness, Movant must
demonstrate that counsel's performance did not conform to
the degree of skill, care and diligence of a reasonably
competent attorney and that he was thereby prejudiced.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
There is a strong presumption that counsel's conduct was
within the wide range of reasonable professional
representation. Id. at 589. Counsel's
representation must be evaluated from his or her perspective
at the time. Id. Specifically, counsel cannot be
found to be ineffective for failing to file a meritless
motion or for failing to give incorrect legal advice. See
Phillips v. State, 356 S.W.3d 179, 185 (Mo. App. E.D.
2011).

Movant
has failed to establish that a motion to dismiss either of
these charges would have been granted at the time of his plea
or that there was any authority at that time for him to
advise Movant the statutes were unconstitutional. These
statutes were presumed constitutional, and at the time of
Movant's plea-when he claims counsel should have
challenged these statute based on the right to bear arms-the
existing United States Supreme Court precedent indicated that
historically prohibiting felons from possessing weapons and
prohibiting carrying weapon in a concealed manner has been
deemed constitutional. See District of Columbia v.
Heller, 554 U.S. 570, 626-27 (2008) (right to bear arms
under Second Amendment and analogous state provisions do not
"cast doubt on such longstanding prohibitions on the
possession of firearms by felons and the mentally ill"
and concealed weapon regulations historically have not been
prohibited). As to the concealed carry statute, the version
of Article I, Section 23 applicable to Movant's case
contained the phrase "but this shall not justify the
wearing of concealed weapons." This phrase
constitutionally prohibited counsel from invoking the right
to bear arms as a means of challenging Section 571.030.1(1)
and justifying Movant's conduct thereunder. See
Brooks v. State, 128 S.W.3d 844, 848 (Mo. banc 2004). As
to the felon in possession statute, after his plea, Section
571.070.1(1) was found to be a permissible restriction on the
right to bear arms under a strict scrutiny analysis in
Merritt. Rather than explain how or why a court
could have or would have reached a different conclusion under
the above precedent if counsel had raised the same challenge
at the time of his plea, Movant just argues that
Merritt was incorrect.

In
short, Movant's allegations do not warrant relief. As the
motion court found and concluded, there was no legal support
for any of his claims because a challenge to the
constitutionality of these statutes based on Movant's
right to bear arms would not have been successful at the time
of his plea or now under either version of the constitutional
provision or under any level of scrutiny. Thus, the motion
court did not clearly err in denying Movant's claims
without a hearing. See McLaughlin v. State, 378
S.W.3d 328, 337 (Mo. banc 2012) (motion court's
presumptively correct ruling will not be overturned for clear
error unless we are left with definite and firm impression a
mistake has been made).

All
points are denied, and the judgment is affirmed.

Sherri
B Sullivan, J and Kurt S ...

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